might supply additional domestic help at $ 1.75 an hour.
On the day plaintiff filed her application for benefits, she signed a statement, as follows:
'I have been reporting myself as self-employed for five years. I do catering at parties in private homes and also just make meals for families. I am under the supervision and control of the person whose home I work at. They bring the food, they tell me how they want it prepared, and they supervise everything I do.
'I have no list of the people I have worked for. I file my tax return on an estimated figure. I have no record of how much I have earned. I work for many people and just could never get any list because there are too many people to remember. I work only when people. call me.'
At the hearing before the Examiner, plaintiff, who was then and is now represented by counsel, claimed that she was confused at the time the statement was read to her and she signed it, and that it was not her statement. Plaintiff testified that she determined when she would arrive at work, she prepared the entire meal and supervised its serving, and she decided when to leave. She insisted that she was a self-employed caterer, and not a domestic employee cook.
The Examiner found that plaintiff's statement was consistent with the other evidence. He pointed out that she refused to furnish the names, remuneration, and dates of her alleged catering contracts. He held that the 'conclusion is inescapable' that plaintiff 'hired herself out as a cook for $ 2.00 per hour'; and that her allegations of self-employment have 'no basis in fact', and 'were made merely for the purpose of securing entitlement to old-age insurance benefits.'
This Court has a limited role in reviewing the decision of the Secretary herein. In Palmer v. Celebrezze, 334 F.2d 306, 307-308 (3 Cir. 1964), the Court of Appeals for the Third Circuit set forth the tests to be applied on review, as follows:
'Section 405(g) (of the Act, 42 U.S.C.A. § 405(g)) provides that, 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive' * * *. This court has no authority or jurisdiction to do anything but follow the plain mandate of the statute, and our sole function in this case is to determine whether the record discloses substantial evidence to support the Secretary's finding of the true nature of the relationship. Whether we agree with the correctness of the Secretary's finding has been made immaterial by the Statute. A court may not displace an administrative body's 'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' Universal Camera Corp. v. (National) Labor (Relations) Board, 340 U.S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456.'
Under the Act, the common law rules govern as to whether an individual is an employee or self-employed, 42 U.S.C.A. § 410(j)(2). Section 404.1004(c)(2) of the Regulations, adopted under the Act, defines the legal relationship of employer and employee as existing
'* * * when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee under the usual common-law rules. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees.' 20 CFR 404.1004(c)(2).
The Regulations thus seem to adopt 'a test in which the totality of the situation, in contradistinction to the single factor of control of the alleged employee by the alleged employer, is governing.' Flemming v. Huycke, 284 F.2d 546, 547 (9 Cir. 1960); Goldberg v. Warren Brothers Roads Co., 207 F.Supp. 99, 101-102 (D.Me.1962); cf. Cody v. Ribicoff, 289 F.2d 394, 397 (8 Cir. 1961).
Under all of the circumstances of the case, this Court is of the opinion that the Secretary's findings that plaintiff was an employee, rather than self-employed in a trade or business, during the years in question, is supported by substantial evidence. Plaintiff reported self-employment earnings for these years, but refused to substantiate this income by disclosing the names and dates of her customers. The Hearing Examiner carefully considered the record before him, including the documentary evidence, plaintiff's testimony, and the argument of her counsel. He certainly was justified in concluding under these facts that plaintiff had not produced sufficient evidence of self-employment. He was not required to accept her contradictory explanations as to the nature of the services she performed.
For these reasons, summary judgment will be granted to defendant, and the decision of the Secretary will be affirmed. Counsel for defendant will please submit an appropriate order on notice to counsel for plaintiff.